Ridgeway v. Royal Bank of Scotland Group, et al

Filing 40

ORDER granting in part and denying in part 18 Motion to Dismiss. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 3/27/12. (Hildebrand, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LOUIS RIDGEWAY,
Plaintiff,

:
:
:
v.
:
:
:
ROYAL BANK OF SCOTLAND GROUP and :
RBS GLOBAL BANKING AND MARKETS,
:
Defendants.
:

CIVIL ACTION NO.
3:11-cv-976 (VLB)

March 26, 2012

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS [Doc. #18]

Plaintiff Louis Ridgeway (Ridgeway) brings this action for damages against
the Defendant Royal Bank of Scotland Group (RBS) relating to his termination
from RBS on April 22, 2010, while on leave for medical treatment. Ridgeway
alleges that RBS violated the Family and Medical Leave Act, 29 U.S.C. §2601 et
seq. (FMLA) and the Connecticut Family and Medical Leave Act (CTFMLA), Conn.
Gen Stat. §31-51kk et seq. Additionally, Ridgeway asserts claims of wrongful
termination, promissory estoppel, and negligent misrepresentation under
Connecticut common law.
Currently pending before the Court is a motion to dismiss all claims for
relief for failure to state a claim upon which relief may be granted pursuant to
Fed. R. Civ. P. 12(b)(6) and D. Conn. L. Civ. P. Rule 7(a). Further, the Defendant
seeks legal fees and costs pertaining to Ridgeway’s third claim brought under the
CTFMLA asserting that Ridgeway lacked substantial justification for bringing this
claim.
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I.

Factual Background
RBS is a multinational bank headquartered in Edinburgh, Scotland with its

United States corporate headquarters located in Stamford, Connecticut. [Dkt #1,
Compl., ¶¶12-13]. Ridgeway, a New Jersey resident, was employed by ABN
AMRO between November 2001 and November 2008. Id. at ¶17. During a merger
between ABN AMRO and RBS, Ridgeway was placed as a secondee in the RBS
offices in Stamford, Connecticut. Id. Following the merger, Ridgeway was
employed by RBS as a Senior Operations Analyst and a Bank Reconciliation
Analyst from November 2008 until April 22, 2010. Id. at ¶16. In July of 2009,
Ridgeway became a permanent employee of RBS, entitling him to retain all
seniority, benefits, and vacation time from his previous employment with ABN
AMRO. Id. at ¶18.
Ridgeway has a history of bank and spinal problems and has undergone
three disectomies, surgical procedures to remove a herniated disc from the
spinal canal. [Dkt. #1, Compl., ¶19]. On or about October 5, 2009, Ridgeway fell at
work “exacerbating his preexisting back and spinal problems.” Id. at 21. During
October and November 2009 Ridgeway took leave under the FMLA to complete a
course of physical therapy. Id. at 23.
Ridgeway asserts that at that time RBS used the calendar year method for
calculating FLMA leave, allowing eligible employees to take their full FMLA leave
each calendar year and full CTFMLA leave beginning on even years. Id. at ¶¶2829. Ridgeway had been previously informed of RBS’s utilization of the calendar
year method of calculating FMLA leave when, in May of 2009, Ridgeway sought

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two to three weeks off for an emergency gallbladder removal, and he received a
letter titled “Confirmation of FMLA and/or Application State Leave(s) of Absence
Request” memorializing in paragraph four RBS’s calendar year policy. Id. at ¶29.
In October of 2009 when he applied for FMLA leave to pursue physical therapy
treatment Ridgeway received the same letter titled “Confirmation of FMLA and/or
Applicable State Leave(s) of Absence Request again memorializing in paragraph
four RBS’s calendar year policy. Id. at ¶30.
On December 14, 2009, Ridgeway was notified by letter entitled “Request
for FMLA and/or Applicable State Leave(s) Approval Notice” that his leave time
from October 5, 2009 through December 31, 2009 had been approved. [Dkt. #1,
Compl., ¶31]. This letter did not indicate the calculation method relied upon by
RBS to calculate FMLA and/or CTFMLA leave. Id. at ¶31.
At the conclusion of his physical therapy regimen in November 2009,
Ridgeway’s doctor informed him that he required surgery to repair the damage in
his neck and back which would necessitate six to ten weeks of recovery and
additional physical therapy. Id. at ¶23. On December 1, 2009, Ridgeway was
informed that his orthopedic surgeon had an opening to perform the surgery on
December 3, 2009. Id. at ¶24. Ridgeway contacted Hewitt, the third party
administrator of RBS’s benefit programs, to discuss his options for continuing
his leave. Id. at ¶¶24-26. Ridgeway explained to Hewitt that he would need two to
three months to undergo neck surgery and physical rehabilitation, after which he
would be able to return to work. [Dkt. #1, Compl., ¶26]. Hewitt told Ridgeway, on
or about December 1, 2009, that he would be eligible for twelve weeks of FMLA

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leave and an additional four weeks of CTFMLA leave, effective January 1, 2010. Id.
at ¶27. Ridgeway asserts that he relied on Hewitt’s representation that he was
eligible to take a full sixteen weeks of protected medical leave and scheduled his
neck surgery for December 3, 2009 expecting to use the remainder of the FMLA
leave previously approved and the second FMLA leave which Hewitt said he was
entitled to take to complete his recovery. The record does not indicate whether
Ridgeway formally applied for FMLA leave. Id. at ¶34.
At the end of January 2010, Ridgeway received a letter dated January 25,
2010, from Dawn Hughes, a Human Resources representative at RBS, stating that
his FMLA leave “ha[d] exhausted as of January 1, 2010 and your position as
Senior Operations Analyst has been put into the posting process/is no longer
available. Please note your employment will remain in force so long as your
Disability claim is approved.” [Dkt. #1, Compl., ¶ 35]. The letter did not specify
the leave to which it referred and did not address Ridgeway’s eligibility for leave
under the CTFMLA. Id. at ¶36. The letter instructed Ridgeway to contact Hewitt
(referred to as “HR Services”) with questions. Id. at ¶37.
On February 17, 2010, Ridgeway contacted Hewitt to inquire about the letter
from RBS deeming his leave exhausted. Id. at ¶38. Hewitt informed Ridgeway
that Dawn Hughes was incorrect, and that he was in fact entitled to take
FMLA/CTFMLA leave through the end of April 2010 because RBS was using the
“calendar year” method to determine successive leave intervals such that the
period in which an eligible employee was permitted to take a second, or
successive leave, would be once in every calendar year. Id. at ¶40. RBS does not

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dispute that a representative of Hewitt informed him that he was eligible for FMLA
and CTFMLA leave through the end of April 2010. [Dkt. #1, Compl., ¶42]. Relying
on Hewitt’s representation that his leave was secure, Ridgeway remained at home
to recover. Id. at ¶43.
In early April of 2010 Ridgeway received a letter dated March 31, 2010 from
RBS entitled “Confirmation of FMLA and/or Applicable State Leave(s) of Absence
Request.” Id. at ¶44. The letter stated that his leave of absence beginning January
1, 2010, had been conditionally designated as FMLA leave. Id. The letter indicated
that the conditional certification depended on the submission of medical
information, return to work plans, and other documentation requirements. Id. at
46. The fourth paragraph stated “[u]nder RBS’s FMLA leave policy colleagues can
take up to 12 weeks of unpaid, job-protected leave in a rolling backward 12 month
period . . .” representing a change in RBS’s policy from the previously used
calendar year method of calculating leave eligibility. [Dkt. #1, Compl., ¶44]. RBS
employees were not previously notified of this change in the method of
calculating FMLA leave. Id. at ¶45. Approximately one week later, Ridgeway
received another letter from RBS entitled “Confirmation of FMLA and/or
Applicable State Leaves of Absence Request,” dated April 7, 2010 and virtually
identical to the previously received letter dated March 31, 2010. Id. at ¶47.
Ridgeway contacted Hewitt on April 5th and April 9th to discuss the two
letters. Id. at ¶48. During both conversations, Hewitt representatives reassured
Ridgeway that his leave was active and was approved through April 22, 2010. Id.

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On or before April 13, 2010, Ridgeway contacted Connecticut’s Department
of Labor (“CT DOL”) to seek their assistance in communicating with RBS about
his protected leave under the FMLA and CTFMLA. [Dkt. #1, Compl., ¶53]. On the
same day, the Principal Attorney of the Office Program Policy (“OPP Attorney”)
called Ridgeway back to notify him that she would initiate an investigation of his
complaint. Id. at ¶54. Pursuant to her investigation of Ridgeway’s complaint, the
OPP Attorney contacted RBS’s in-house counsel Amy Gare, Dawn Hughes and
other RBS employees, and requested documentation from RBs concerning
Ridgeway’s leave and their leave calculation methods. Id. at ¶¶55-56.
On April 16, 2010 Ridgeway spoke with a representative of Hewitt named
“Ebony” who informed him that there was now an outstanding question as to
whether his FMLA/CTFMLA leave should have been approved on December 1,
2009 for the period of January 1, 2010 through April 22, 2010. [Dkt. #1, Compl.,
¶50]. Ebony confirmed, however, that his leave had been approved on December
1, 2009. Id.
On or about April 19, 2010, Ridgeway contacted Dawn Hughes to clarify his
employment status with RBS and was informed that he was still employed by
RBS. Id. at ¶51. On April 22, 2010, Dawn Hughes and her supervisor in RBS’s
Human Resources Department, Ronni Greenberg, contacted Ridgeway to inform
him that he was terminated. Id. at ¶57.
Since his termination, Ridgeway has actively, but unsuccessfully sought to
obtain reemployment. [Dkt. #1, Compl.,¶58]. Ridgeway asserts, on information

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and belief, that RBS employees informed prospective employers, prior to the
initiation of the current lawsuit, that Ridgeway was suing RBS. Id. at ¶59.
Ridgeway also alleges that since his termination that “on information and
belief, RBS employees have informed prospective employers that Ridgeway is
suing RBS . . .” to retaliate against him for filing a complaint with the Connecticut
Department of Labor seeking to vindicate his rights under the FMLA and
CTFMLA. [Doc. # 1 ¶¶ 59-60]. Ridgeway further asserts that he has lost job
opportunities as a result of these statements. Id. at ¶60.
II.

Standard of Review
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a

‘short and plain statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While Rule 8 does not
require detailed factual allegations, “[a] pleading that offers ‘labels and
conclusions’ or ‘formulaic recitation of the elements of a cause of action will not
do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129
S.Ct. at 1949-50). “At the second step, a court should determine whether the
‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 129 S.Ct. at 1950). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949
(internal quotation marks omitted).
III.

Discussion
A. Interference and Retaliation under the FMLA
In Count One of his complaint, Ridgeway asserts claims of both retaliation

and interference in violation of the FMLA. In particular, Ridgeway alleges that
RBS interfered with his right to take a federally protected leave of absence under
the FMLA by approving his request for leave, then subsequently modifying its
calculation method without notifying its employees, recalculating his eligibility
for leave and reclassifying his previously approved leave as unprotected.
Ridgeway alleges that RBS retaliated against him in violation of the FMLA by

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refusing to restore him to the same or an equivalent position following his
protected leave.
The FMLA entitles eligible employees to “twelve workweeks per year of
unpaid leave, ‘because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.’ ” Sista v. CDC
Ixis North America, Inc., 445 F.3d 161, 174 (2d Cir. 2006) (quoting 29 U.S.C.
§2612(a)(1)(D). Following such leave, the FMLA provides that the employee is
entitled to be restored to a position equivalent to that previously held, including
equivalent pay and benefits. 29 U.S.C. §2614(a)(1). A regulation promulgated by
the Secretary of Labor restricts an employee’s right to return to an equivalent
position following FMLA leave by providing that “[i]f the employee is unable to
perform an essential function of the position because of a physical or mental
condition, including the continuation of a serious health condition, the employee
has no right to restoration to another position under the FMLA.” 29 C.F.R.
§825.216(c). The FMLA “creates a private right of action to seek both equitable
relief and money damages against any employer . . . in any Federal or State court
of competent jurisdiction should that employer interfere with, restrain, or deny
the exercise of FMLA rights.” Nevada Dept. of Human Resources v. Hibbs, 538
U.S. 721, 724-25 (2003) (internal quotations and citations omitted).
In Potenza v. City of New York, 365 F.3d 165 (2d Cir. 2004), the Second
Circuit acknowledged that claims of interference and retaliation raise distinct
causes of action under the FMLA. 365 F.3d at 167-68. The Second Circuit “noted
with some favor the manner in which the Seventh Circuit had distinguished the

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two approaches.” Sista, 445 F.3d at 176. The Second Circuit summarized the
distinction as follows:
A case from the Seventh Circuit emphasizes that the
difference between the two approaches inheres in the
relevance of the employer’s intent to the determination
of whether or not a violation has occurred. Potenza, 365
F.3d at 176 (citing King v. Preferred Technical Group,
166 F.3d 887, 891 (7th Cir. 1999)).
Relying on the significance of intent in retaliation claims, as described by the
Seventh Circuit, the Second Circuit instructed that the McDonnell Douglas
burden-shifting analysis from the Title VII context should be applied to “claims of
retaliation- where the employer’s intent is material- but not to assertions of
interference, where the question is simply whether the employer in some manner
impeded the employee’s exercise of his or her right.” Potenza, 365 F.3d at 168.
Therefore as claims of interference and retaliation are distinct causes of action
subjected to different analyses, the Court will address each claim separately.
1. Interference
Ridgeway’s interference claim alleges that RBS failed to provide him with
proper notice of its FMLA policies thereby inhibiting Ridgeway’s ability to secure
approval for his desired period of FMLA leave. Ridgway asserts that he scheduled
and obtained neck surgery in December of 2009 in reliance upon verbal
confirmation from Hewitt, RBS’s benefits administrator, that he was eligible for
twelve weeks of FMLA leave and an additional four weeks of CTFMLA leave
effective January 1, 2010. While on leave in January of 2010, Ridgeway contends
that RBS altered its method of calculating FMLA leave without notifying him of
the change, and subsequently notified him that his FMLA leave had been
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exhausted as of January 1, 2010. Ridgeway’s interference claim therefore appears
to be predicated upon RBS’s failure to notify him at the time that he requested
FMLA leave of their method of calculating FMLA leave, such that he was induced
to schedule and did in fact schedule an operation necessitating a lengthy period
of leave under the false impression that the leave had been authorized.
RBS argues in support of its motion to dismiss that because Ridgeway was
terminated in April of 2010 and received the full twelve weeks of FMLA leave to
which he was entitled, he has failed to state a claim for interference.
While the FMLA does not define the term “interference,” the United States
Department of Labor has promulgated a regulation explaining that “ ‘[i]nterfering
with’ the exercise of an employee’s rights would include, for example, not only
refusing to authorize FMLA leave, but discouraging an employee from using such
leave. It would also include manipulation by a covered employee to avoid
responsibilities under the FMLA.” 29 C.F.R. §825.220(b).
Although the Second Circuit has addressed in several instances claims of
interference under the FMLA, it has not yet articulated or identified the standard
to be applied to interference claims. See Potenza, 365 F.3d at 168 (declining to
articulate the standard governing interference claims where plaintiff’s case
involved retaliation rather than interference); Sista, 445 F.3d at 176 (declining to
articulate the standard to be applied to inference claims where plaintiff failed to
present evidence sufficient to substantiate either claim). “Because Potenza’s
case involves retaliation rather than interference, we need not decide whether or
not to adopt the Seventh Circuit’s analysis in its entirety”). The weight of

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authority in the Circuit, as reflected in the decisions of district judges in the
Southern, Eastern, Northern and Western Districts of New York, holds that in
order to establish a prima facie case of interference in violation of the FMLA a
plaintiff must show that:
(1) [H]e is an “eligible employee” under the FLMA; (2) that [the
employer] is an employer as defined in [the] FLMA; (3) that [he]
was entitled to leave under [the] FMLA; (4) that [he] gave notice to
[the employer] of [his] intention to take leave; (5) that [he] was
denied benefits to which she was entitled under [the] FMLA. See
Higgins v. NYP Holdings, Inc., 2011 WL 6082702, at *9 (S.D.N.Y.
Dec. 7, 2011); Baker v. AVI Foodsystems, Inc., No. 10-CV-00159
(A)(m), 2011 WL 6740544, at *13 (W.D.N.Y. Dec. 6, 2011); Debell v.
Maimonides Med. Ctr., No. 09-CV-3491 (SLT)(RER), 2011 WL
4710818 (E.D.N.Y. Sept. 30, 2011); Leclair v. Berkshire Union Free
Sch. Dist., No. 1:08-CV-01354 (LEK/RFT), 2010 WL 4366897, at *5
(N.D.N.Y. Oct. 28, 2010).
Defendant RBS does not dispute that Ridgeway has satisfied the first four
essential components of an interference claim. The sole remaining dispute
is whether or not Ridgeway’s allegations satisfy the fifth component,
requiring a denial of FMLA benefits.
The Second Circuit has recognized the potential for an interference cause
of action premised upon “an employer’s failure to post a notice where that failure
leads to some injury.” Kosakow v. New Rochelle Radiology Assoc., 274 F.3d 706,
723-24 (2d Cir. 2001). Although ultimately concluding that such a proposition,
even if cognizable, could not apply to the plaintiff whose eligibility to maintain a
cause of action under the FMLA was in question, the Second Circuit discussed an
Eastern District of Pennsylvania decision which recognized a cause of action
based on deficiencies of notice and the provision of misleading information

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which ultimately frustrated an employee’s ability to exercise the right to take
leave under the FMLA. Id.
In Fry v. First Fidelity Bancorporation, No. CIV A. 95-6019, 1996 WL 36910
(E.D.P.A. Jan. 30, 1999), the plaintiff alleged that the defendant-employer
interfered with her right to reinstatement by failing “to notify her that the first
twelve weeks of her approved family leave was designated as FMLA leave, and
that her right to reinstatement to the same or a comparable position pursuant to
the FMLA expired at the end of that period,” which misled her into requesting an
additional four weeks of leave, thereby frustrating her right to reinstatement after
returning from leave.” 1996 WL 36910, at *4. The Eastern District of Pennsylvania
held that these allegations stated a “valid cause of action under the FMLA, since
adequate notice to employees concerning their FMLA right to reinstatement in
light of any additional leave permitted by the employer is necessary to enable
them to exercise their statutory right to reinstatement.” Id.
Such a cause of action is consistent with the prevailing standard for an
interference claim within the Second Circuit, requiring that the purported
interference ultimately results in the denial of a benefit under the FMLA. Where
the employee is not provided with the necessary information regarding the
employer’s FMLA leave policies, the employee is denied the ability to conform a
desired period of leave to the employer’s policies so as to preserve the right to
reinstatement, a benefit at the crux of the FMLA’s provisions. “For example,
where an employee uses leave which might be counted on vacation time, FMLA
leave, or both, an employer’s failure to provide notice that the leave counts

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against the FMLA allotment might interfere with the employee’s ability to plan and
use future FMLA leave to, for example, schedule elective surgery and recuperate
from the surgery.” Donnellan v. New York City Transit Auth., No. 98 Civ. 1096
(BSJ), 1999 WL 527901, at *4 (S.D.N.Y. July 22, 1999).
Therefore, although the failure to provide notice of the terms of the FMLA,
“where the lack of notice had no effect on the employee’s exercise of or attempt
to exercise any substantive right conferred by the Act,” is insufficient to state a
cause of action, the failure to provide notice which inhibits or restricts an
employee from successfully obtaining leave or the right to reinstatement does
result in a denial of benefits and can substantiate a cause of action for
interference. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 162 (2d
Cir. 1999); see also Sacco v. Legg Mason Inv. Counsel & Trust Co., N.A., 660
F.Supp.2d 302, 316 (D.Conn. 2009) (holding that “there was no actual
‘interference’ with [plaintiff’s] FMLA rights because [defendant’s] work
requirements and the temporary lack of notice ‘in no way affected [her] leave,
benefits, or reinstatement.’”)(quoting Sarno, 183 F.3d at 162).
Misleading information can also interfere with an employee’s attempt to
exercise his or her rights under the FMLA. See Kanios v. UST, Inc., No. 3:03cv369
(DJS), 2005 WL 3579161, at *10-11 (D.Conn. Dec. 30, 2005) (denying a motion for
summary judgment on an interference claim on the basis that plaintiff “may be
able to prove that [the defendant] interfered with her FMLA rights by intentionally
overstating the amount of leave available to her,” thereby misinforming her of
when she needed to return to work in order to secure the benefit of the right to

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reinstatement). Indicating to an employee that he or she qualifies for a specific
period of leave, and then subsequently informing the employee that the period of
leave has expired or is no longer approved functions in the same manner as a
lack of notice by preventing the employee from exercising the right to
reinstatement, thereby denying an essential benefit of the FMLA.
Here, Ridgeway’s claim of interference is predicated upon both a lack of
notice and misinformation as having hindered his ability to return to his position
of employment at RBS. Although Ridgeway alleges that he had previously
received notification from RBS that they calculated employee eligibility for FMLA
leave using the calendar method, when Ridgeway requested a period of leave in
October 2009 in order to undergo a course of physical therapy treatment, RBS’s
“Confirmation of Request for Leave” included no information regarding RBS’s
method of calculating FMLA leave. It was not until April 2010 that Ridgeway
asserts he received notice of RBS’s adoption of a different method of calculating
employee eligibility for FMLA leave, utilizing a rolling-backward twelve month
period. Accepting Ridgeway’s allegations as true as the non-moving party, RBS’s
failure to notify Ridgeway of their method of calculating FMLA leave in advance of
his desired period of leave deprived him of the ability to take FMLA leave while
preserving the benefit of reinstatement. See Donnellan, 1999 WL 527901, at *4
(recognizing that failure to provide notice can constitute interference where the
lack of notice prevents the employee from exercising benefits under the FMLA
such as by scheduling elective surgery). This lack of notice and its subsequent
prejudice to Ridgeway alone is enough to substantiate a claim for interference.

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A regulation promulgated by the Department of Labor in order to effectively
implement the federal benefits conferred under the FMLA mandates that
employer’s provide notice to employee’s who express an interest in exercising
their benefits under the FMLA by notifying them within five business days of their
eligibility to take FMLA leave. 29 C.F.R. §825.300(b)(1). The regulation further
mandates that when such eligibility notice is provided, employers must also
provide written notice detailing “the specific expectations and obligations of the
employee and explaining ay consequences of failure to meet these obligations,”
including the applicable 12- month period for FMLA entitlement, any requirements
for the employee to furnish certification of a serious health condition, the
employer’s right to substitute paid leave, the employee’s right to maintain
benefits during the FMLA leave and restoration to the same or equivalent job
upon return from FMLA leave. 29 C.F.R. §825.300(c)(1)(ii), (iii), and (vi). The
regulation explicitly provides that “[f]ailure to follow the notice requirements set
forth in this section may constitute interference with, restraint, or denial of the
exercise of an employee’s FMLA rights.” 29 C.F.R. §825.300(e). Although a
technical violation of these regulations, absent any prejudice to the employee in
the form of interference with or restraint or denial of the ability to exercise FMLA
rights is not actionable, deficiencies in notice which do prejudice the employee
are sufficient to substantiate a claim of interference. See Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002); see also 29 C.F.R. §825.300(e). Here,
where RBS’s failure to notify Ridgeway of their method of calculating FMLA leave
deprived him of the ability to accurately assess his eligibility for leave and secure

16

his right to reinstatement, Ridgeway has clearly alleged that he was prejudiced by
the deficiencies in notice so as to state a cognizable claim for interference.
Ridgeway further asserts that he received conflicting information from
Hewitt and RBS which interfered with his ability to exercise his rights under the
FMLA. Having received initial approval from Hewitt to take FMLA and CTFMLA
leave from January through April 2010, Ridgeway alleges that in January, a month
after he had begun his FMLA leave following surgery, RBS informed him by letter
that this FMLA leave had been exhausted as of January 1, 2010. Ridgeway
contends that the letter further provided that his employment “would remain in
force so long as your Disability claim is approved.” After again receiving verbal
confirmation from Hewitt that he was eligible for FMLA leave through April 2010,
Ridgway asserts that he received two additional letters in April 2010 informing
him that his leave had been conditionally designated as FMLA leave, and setting
forth a new method of calculating FMLA leave by applying a rolling-backward
twelve month period. Ridgeway contends that he was ultimately terminated on
April 22, 2010.
Accepting Ridgeway’s allegations about this series of communications as
true, Ridgeway received misleading and contradictory information from Hewitt
and RBS, denying him the ability to understand his rights and benefits under the
FMLA and thereby frustrating his efforts to exercise those rights. The
dissemination of misinformation described in Ridgeway’s factual allegations is
even more prejudicial than a lack of notice, as any attempt to discern the true
status of his leave was obscured by the directly contradictory notice he received.

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In addition to the adequately plead claim of interference on the basis of a
lack of notice and misinformation, the communications conveyed by RBS and
Hewitt constitute discouragement. “[C]ourts in the Second Circuit require a
Plaintiff who asserts a FMLA interference claim on a “discouragement” theory to
offer evidence that she tried to assert her FMLA rights and was thereafter
discouraged from taking FMLA leave, unless the employer’s purported acts of
discouragement would have dissuaded a similarly situated employee of ordinary
resolve from attempting to exercise his or her FMLA rights.” Reilly v. Revlon, 620
F.Supp.2d 254 (S.D.N.Y. 2009) (citing Golden v. New York City Dept. of Envir.
Protection, 2007 WL 4258241 (S.D.N.Y. Dec. 3, 2007). In light of the verbal
authorization to take FMLA and CTFMLA between January 1 and April 22, 2010,
the January 2010 letter indicating that his FMLA leave was exhausted constitutes
discouragement, as it could have prompted Ridgeway to abandon his leave and
attempt to return to work prematurely. See 29 C.F.R. §825.220(b) (defining
interfering with the exercise of an employee’s rights as including “discouraging
an employee from using such leave.”). Further, the April 16, 2010 conversation
with Hewitt informing Ridgeway that there was an outstanding question as to
whether his leave should have been approved could have discouraged Ridgeway
from remaining on leave, prompting him to return to work to preserve his
employment with RBS.
Accordingly, where Ridgeway’s allegations of a lack of notice and
misleading information, and discouragement assert that he was denied the ability
to exercise his right to reinstatement, an essential benefit under the FMLA,

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Ridgeway has sufficiently alleged a claim of interference. RBS’s motion to
dismiss Ridgeway’s interference claim is therefore DENIED.
2. Retaliation
As discussed above, Ridgeway alleges that RBS retaliated against him in
violation of the FMLA by refusing to restore him to the same or an equivalent
position following his protected leave.
“Failure to reinstate an employee to a prior position or its equivalent
following FMLA leave is a properly plead FMLA interference claim.” Gauthier v.
Yardney Technical Products, Inc., 2007 WL 2688854, at *7 (D.Conn. Sept. 13,
2007); see also Roberts v. Ground Handling, Inc., 499 F.Supp.2d 340 (S.D.N.Y.
2007) (analyzing a claim relating to a failure to reinstate following FMLA leave as
a claim of interference); Leach v. State Farm Mut. Auto Ins. Co., 431 Fed. Appx.
771, 776 (11th Cir. 2001) (“[I]t is undisputed that State Farm refused to let Leach
return to his former position after his FMLA leave ended. Thus, Leach made a
prima facie showing of FMLA interference with his right to reinstatement.”); see
also Ford-Evans v. Smith, 206 Fed.Appx. 332, 335 (5th Cir. 2006) (“the right to
reinstatement upon return from leave is a right protected by FMLA’s interference
provision”); Kauffman v. Fed Express Corp., 426 F.3d 880, 884 (7th Cir. 2005);
Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).
However, Ridgeway’s complaint explicitly identifies the failure to reinstate
as the factual predicate for a retaliation claim rather than as additional support for
his interference claim. See Dkt. #1, Compl., ¶64. (“Defendants retaliated against
Plaintiff in violation of the FMLA when it refused to restore him to the same or an

19

equivalent position following his protected leave.”). Further, Ridgeway’s claim
differs from the standard FMLA interference claims predicated upon a failure to
reinstate because Ridgeway was terminated upon the conclusion of his CTFMLA
leave, which extended for four weeks following his FMLA leave, rather than
following his FMLA leave. The right to reinstatement under the FMLA expires
when FMLA leave expires. See Degraw v. Exide Technologies, 744 F.Supp.2d
1199, 1215 (D.Kan. 2010) (collecting cases); see also Sarno, 183 F.3d at 161-62
(holding that defendant did not interfere with plaintiff’s FMLA rights where
plaintiff remained unable to perform the essential functions of his position at the
end of his FMLA leave). Therefore although Ridgeway may be able to assert a
claim of interference pursuant to the CTFMLA on the basis of a failure to
reinstate, such a claim is not cognizable as a violation of FMLA, where Ridgeway
remained on leave beyond the expiration of his FMLA leave. See Conn. Gen. Stat.
§31-51nn(a) (providing for a right of reinstatement to the original position of
employment or an equivalent position upon return from leave pursuant to Conn.
Gen. Stat. §31-51ll, the CTFMLA). Further, Ridgeway does not appear to assert
that the misinformation and ultimate termination was retaliation for taking the
first period of FMLA leave. Thus, the Court will analyze Ridgeway’s failure to
reinstate claim as a retaliation claim.
As the Second Circuit in Potenza unambiguously instructed, retaliation
claims are analyzed under the McDonnell Douglas burden-shifting test. 365 F.3d
at 168. In order to assert a prima facie claim of retaliation against the exercise of
rights under the FMLA, Ridgeway must establish that: “1) he exercised rights

20

protected under the FMLA; 2) he was qualified for his position; 3) he suffered an
adverse employment action; and 4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent.” Id. “The
McDonnell Douglas burden-shifting framework is an evidentiary standard, not a
pleading requirement,” therefore a plaintiff need only allege facts sufficient to
state a claim and not sufficient to establish a prima facie case. Boykin v.
KeyCorp, 5231 F.3d 202 (2d Cir. 2008)(internal quotations omitted); see also
Peterson v. Long Island R.R. Co., No. 10-cv-480, 2010 WL 2671717, at *2 (E.D.N.Y.
June 30, 2010)(“a complaint asserting an employment discrimination claim,
including an FMLA retaliation claim, need not plead specific facts establishing a
prima facie case of discrimination in order to survive a motion to dismiss”).
In its motion to dismiss, RBS argues that Ridgeway has failed to state a
claim of retaliation where Ridgeway has not alleged that he was willing and able
to return to work upon the completion of his FMLA leave. RBS argues that if
Ridgeway’s FMLA began on January 1, 2010, his twelve weeks of FMLA leave
would have expired on March 25, 2010. RBS asserts that because Ridgeway does
not allege in his complaint that he was able to and attempted to return to his
position by March 25, 2010, whatever obligation RBS had to restore him to his
former position under the FMLA expired.
To support this argument, RBS relies heavily on the Second Circuit’s
decision in Sarno for the proposition that where an employee remained unable to
perform the essential functions of his position after FMLA leave, failure to restore
the employee to his position does not constitute a violation of the FMLA. RBS’s

21

reliance on Sarno is misplaced as Sarno dealt exclusively with a claim of
interference under the FMLA predicated upon a failure to provide adequate notice
of the employee’s rights under the FMLA as an impediment to the employee’s
right to reinstatement. 183 F.3d at 161-62. As previously discussed, Ridgeway’s
allegations regarding failure to reinstate assert a claim of retaliation rather than
interference, therefore Sarno’s failure to reinstate analysis is inapposite.
Applying the burden-shifting McDonnell Douglas framework, the Court
concludes that Ridgeway has sufficiently alleged a claim of retaliation in violation
of the FMLA. It is undisputed that Ridgeway has satisfied the first and third
elements of a retaliation claim, as Ridgeway exercised rights under the FMLA by
attempting to take leave protected under the FMLA and he suffered an adverse
employment action when he was terminated on April 22, 2010 after the period of
leave. Further, RBS does not dispute that Ridgeway was qualified for position.
See McGinnis v. New York Univ. Med. Ctr., 2012 WL 251961, at *3 (S.D.N.Y. Jan.
25, 2012) (assuming that plaintiff established the requirement of qualification for
the position in the context of an FMLA retaliation claim where the defendant did
not dispute this element). Lastly, the Court finds that Ridgeway’s allegations
satisfy his burden to sufficiently plead facts to create a reasonable inference of
retaliatory intent.
Ridgeway’s allegations support a plausible inference that his termination
on April 22, 2010 was the culmination of a protracted campaign of retaliation
against him for having requested two successive periods of protected medical
leave. In particular, Ridgeway contends that as early as January 25, 2010, after his

22

first period of FMLA leave had ended and less than four weeks after his second
successive FMLA leave began, RBS contacted him and informed him that his
leave had been exhausted as of January 1, 2010 and his position had been put in
the posting process and was no longer available. Although the FMLA does not
require employers to hold an employee’s exact position during a period of FMLA
leave, requiring only that the employer reinstate the employee to the same or an
equivalent position at the end of the leave, reassigning an employee’s position
during or following FMLA leave can contribute to an inference of retaliation.
Adams v. Northstar Location Services, LLC, No. 09-CV-1063 (JTC), 2010 WL
3911415, at *6 (W.D.N.Y. Oct. 5, 2010).
Ridgeway alleges that RBS then informed him in April of 2010 that his
request for leave had been “conditionally designated” as FMLA Leave,
conditioned upon the submission of medical information and other
documentation requirements, and notifying him that RBS’s method of calculating
FMLA leave had been changed from the calendar year method to a 12 month
rolling-backward approach. These allegations create a plausible inference that
RBS, frustrated with Ridgeway’s request for a second successive period of leave,
deceptively changed its method of calculating FMLA leave during Ridgeway’s
period of leave, after having informed Ridgeway that he was eligible for the leave,
such that Ridgeway no longer would no longer be entitled to reinstatement,
enabling the Company to terminate him. This alleged conduct undeniably creates
an inference of retaliatory intent. Whether or not the evidence will substantiate

23

the allegations regarding a campaign of retaliation is an issue reserved for
summary judgment or the trier of fact at trial.
The timing of Ridgeway’s termination lends further support to an inference
of retaliatory intent. Temporal proximity between a plaintiff’s exercise of rights
created by FMLA and an adverse employment action can give rise to an inference
of retaliation. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010); see also Reilly v. Revlon, 620 F.Supp.2d at 538. Ridgeway was terminated
on the final date of his medical leave, on April 22, 2010, and eight days after he
contacted Connecticut’s Department of Labor to seek their assistance in
communicating with RBS about his protected leave. Whereas an adverse
employment action taken several months after the exercise of protected rights is
too attenuated to give rise to an inference of retaliation, a termination on the very
day that the protected leave expired and within days of the reporting of a
potential violation of rights to a state agency is certainly sufficient to create such
an inference. See Reilly, 620 F.Supp.2d at 538-39 (holding that no inference of
discrimination could be drawn where plaintiff was terminated two and a half
months after the expiration of her FMLA leave).
Lastly, the Court finds that Ridgeway has sufficiently plead facts to
suggest that he was able to and intending to return to work following the
expiration of his protected medical leave. Ridgeway’s allegations indicate that
throughout his receipt of conflicting information from RBS and Hewitt regarding
his FMLA coverage, he remained in constant contact with both RBS and Hewitt,
attempting to confirm the status of his leave and his employment with RBS. In

24

fact, on April 19, 2010, three days prior to his termination, Ridgway contacted
Dawn Hughes, a human resources employee at RBS, to confirm his employment
status with the company and received informed that he was in fact, still
employed. A plausible inference may be drawn from these various attempts to
clarify and confirm the status of his leave and employment that Ridgeway
intended to return to work at RBS on April 23, 2010, the date following his
protected leave. It is further apparent from Ridgeway’s factual allegations that he
was ultimately denied the opportunity to seek reinstatement when he was
terminated on April 22, 2010, the last day of his medical leave. These allegations
give rise to a plausible inference that Ridgeway intended to and was capable of
returning to work following his medical leave and the Court is obligated in review
of a motion to dismiss to assume their veracity. See Iqbal, 129 S.Ct. at 1940-41
(“When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to
relief.”). To the extent that RBS disputes whether Ridgeway was in fact capable of
returning to work following his medical leave, such an argument is more
appropriate on a motion for summary judgment at which time the Court would
have the opportunity to examine the factual record as presented by the parties.
This is particularly true where, as here, the employee attempted to schedule leave
in conformity with the employer’s policies before undergoing a medical
procedure necessitating the use of leave.
Moreover, while Ridgeway’s ability to return to work following his medical
leave would be a critical component of an interference claim predicated upon the

25

failure to reinstate, it is irrelevant to Ridgeway’s claim of retaliatory discharge,
asserting that he was terminated in retaliation for having requested and/or taken
leave before he had the opportunity to attempt to return to work upon the
conclusion of the medical leave. See Sarno, 183 F.3d at 161-62 (holding that
defendant did not interfere with plaintiff’s FMLA rights where plaintiff remained
unable to perform the essential functions of his position at the end of his FMLA
leave). The Court notes that Sarno did not involve an inability to return based on
the employer’s misinformation as to its FMLA policy.
As an aside, to the extent that Ridgeway claims that RBS’s employees were
gratuitously informing other potential employers of Ridgeway that he attempted
to exercise his right to redress the interference with and retaliation against his
exercise of his FMLA rights by filing suit as permitted by the FMLA, this too could
constitute retaliation.
Accordingly, the Court finds that Ridgeway has plausibly alleged a claim of
retaliation in violation of the FMLA. RBS’s motion to dismiss Ridgeway’s
retaliation claim is DENIED.
To the extent that RBS argues that both claims under the FMLA must be
dismissed because Ridgeway does not have any damages as a result of the
alleged FMLA violations, the Court notes that Ridgeway has alleged in his
complaint that the alleged violations have caused him to suffer, among other
things, “lost compensation, seniority, and benefits.” [Dkt. #1, Compl., ¶66]. In
reviewing a motion to dismiss, the Court must accept these factual allegations as
true. Iqbal, 129 S.Ct. at 1940-41.

26

B. Wrongful Termination in Violation of Public Policy
Ridgeway’s second claim contends that he was wrongfully terminated in
violation of the public policy expressed in Conn. Gen. Stat. §31-51ll, a provision
of the CTFMLA providing, in relevant part, that eligible employees are entitled to
sixteen weeks of protected medical leave during any twenty-four month period.
Conn. Gen. Stat. §31-51ll(a). RBS moves to dismiss this claim, asserting that the
claim is precluded by the statutory remedies available under Conn. Gen. Stat.
§31-51pp and Conn. Gen. Stat. §31-51m.
Although generally under Connecticut law “contracts of permanent
employment, or for an indefinite term, are terminable at will,” a common law
cause of action in tort for the discharge of an at will employee exists in limited
circumstances. Such remedy is available subject to two particular limitations: (1)
the former employee must establish “a demonstrably improper reason for
dismissal, a reason whose impropriety is derived from some important violation
of public policy,” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475
(1980); and (2) the employee must establish that he or she was “otherwise
without remedy and that permitting the discharge to go unredressed would leave
a valuable social policy to go unvindicated.” Atkins v. Bridgeport Hydraulic Co., 5
Conn.App. 643, 648 (1985).
Ridgeway has failed to plausibly allege a claim of wrongful termination
where he cannot demonstrate that he is otherwise without remedy such that his
discharge would go unredressed given the express statutory remedies provided
by the CTFMLA. Conn. Gen. Stat. §31-51pp(c)(2) provides that:
27

Any employee aggrieved by a violation of this
subsection may file a complaint with the Labor
Commissioner alleging violation of the provisions of
this subsection. Upon receipt of any such complaint, the
commissioner shall hold a hearing. After the hearing,
the commissioner shall send each party a written copy
of the commissioner's decision. The commissioner may
award the employee all appropriate relief, including
rehiring or reinstatement to the employee's previous
job, payment of back wages and reestablishment of
employee benefits to which the employee otherwise
would have been eligible if a violation of this subsection
had not occurred. Any party aggrieved by the decision
of the commissioner may appeal the decision to the
Superior Court in accordance with the provisions of
chapter 54.
Supplementing this statutory remedy, Conn. Gen. Stat. §31-51m(c) provides that:
Any employee who is discharged, disciplined or
otherwise penalized by his employer in violation of the
provisions of subsection (b) may, after exhausting all
available administrative remedies, bring a civil action,
within ninety days of the date of the final administrative
determination or within ninety days of such violation,
whichever is later, in the superior court for the judicial
district where the violation is alleged to have occurred
or where the employer has its principal office, for the
reinstatement of his previous job, payment of back
wages and reestablishment of employee benefits to
which he would have otherwise been entitled if such
violation had not occurred. An employee's recovery
from any such action shall be limited to such items,
provided the court may allow to the prevailing party his
costs, together with reasonable attorney's fees to be
taxed by the court. Any employee found to have
knowingly made a false report shall be subject to
disciplinary action by his employer up to and including
dismissal.
This statutory scheme permits Ridgeway to raise the purported denial of his
CTFMLA rights before first the Connecticut Department of Labor, and then,

28

following this exhaustion of this administrative remedy, to challenge the DOL’s
determination in court.
Ridgeway’s attempt to circumvent the administrative remedy as inadequate
is unavailing. Ridgeway contends that he should not be required to exhaust his
administrative remedies before pursuing his claim of wrongful termination
predicated upon violations of the CTFMLA because the administrative remedy
provided is inadequate. Although Ridgeway correctly notes that the Connecticut
Supreme Court has recognized exceptions to an exhaustion requirement, such
exceptions have been recognized “infrequently and only for narrowly defined
purposes . . . such as when recourse to the administrative remedy would be futile
or inadequate.” Stepney v. Fairfield, 263 Conn. 558, 565 (2003). Whereas “[i]t is
well established that [a]n administrative remedy is futile or inadequate if the
agency is without the authority to grant the requested relief,” Ridgeway provides
no case law to suggest that an administrative remedy may be deemed inadequate
so as to trigger this exception where the administrative remedy on the basis of
the length of the administrative process prescribed. Neiman v. Yale University,
270 Conn. 244, 259 (2004); see also Stepney, 263 Conn. at 565 (“Because of the
policy behind the exhaustion doctrine, we construe these exceptions narrowly.”).
Where the statutory remedies available to Ridgeway under the CTFMLA
provide him with an adequate method to seek redress for the alleged denial of his
rights under the CTFMLA, enabling him to present his claim to the CT DOL for a
determination and subsequently challenge this administrative determination in
court to seek reinstatement, payment of back wages, reestablishment of

29

employee benefits, and reasonable attorney’s fees if he is the prevailing party,
Ridgeway’s common law claim of wrongful termination is precluded.
Accordingly, RBS’s motion to dismiss Ridgeway’s second claim for
wrongful termination in violation of public policy is GRANTED.
C. Violation of Conn. Gen. Stat. 31-51q
Ridgeway’s third claim asserts that Ridgeway was terminated in retaliation
for having spoken out about RBS’s interference with his protected medical
benefits, alleging that he was terminated approximately three days after the CT
DOL’s contact with RBs on his behalf. Ridgway contends that his contact with the
CT DOL raised a matter of public concern and that such speech was a motivating
factor that led to his termination.
RBS argues that this claim must be dismissed because Ridgeway’s speech
dealt entirely with a matter of private concern, addressing his family and medical
leave. Further, RBS asserts that Ridgeway has failed to allege an essential
element of a claim pursuant to §31-51q, that his speech did not substantially or
materially interfere with his bona fide job performance or his working relationship
with his employer.
To state a claim under Section 31-51q, “a plaintiff must allege that (1) he
was exercising rights protected by the First Amendment to the United States
Constitution (or an equivalent provision of the Connecticut Constitution); (2) he
was fired on account of his exercise of such rights; and (3) his exercise of his
First Amendment rights did not substantially or materially interfere with his bona

30

fide job performance or with his working relationship with his employer.”
D’Angelo v. McGoldrick, 230 Conn. 356, 361 (1996).
Section 31-51q extends the protection of the rights of free speech beyond
simply freedom of speech in the public arena, but “nevertheless, the statute does
not protect all speech. The statute applies only to expressions regarding pubic
concerns that are motivated by an employee’s desire to speak out as a citizen.”
Campbell v. Windham Comm. Memorial Hosp., Inc., 389 F.Supp.2d 370, 381-82
(D.Conn. 2005) (internal citations and quotation omitted). The statute, therefore,
draws a distinction between speech “as a citizen upon matters of public
concern,” or “instead as an employee upon matters only of personal interest.” Id.
(quoting Connick v. Myers, 461 U.S. 138, 147 (1983)).
Ridgeway’s allegations regarding his communications with the CT DOL
indicate that he conveyed concerns focused solely on his individual rights under
the FMLA and CTFMLA. Ridgeway states that he “contacted the Connecticut
Department of Labor (“CT DOL”) regarding his protected leave and sought the
CTDOL’s assistance in communicating with RBS about his protected leave under
the FMLA and CTFMLA.” [Dkt. #1, Compl., ¶53]. Absent any allegations that his
communication with the CT DOL addressed anything other than the terms and
conditions of his employment, Ridgeway has failed to allege that he was
terminated on the basis of speech on a matter of public concern. See Campbell,
389 F.Supp.2d at 382 (citing Winik-Nystrup v. Manuf. Life Ins. Co., 8 F.Supp.2d
157, 160 (D.Conn. 1998).

31

Accordingly, RBS’s motion to dismiss is granted as to Ridgeway’s claim
under Conn. Gen. Stat. §31-51q. To the extent that RBS requests an award of
costs and attorneys’ fees for its defense of this claim, such request is denied as
the Court finds that this claim was not brought without substantial justification.
See Williams v. Bayer Corp., 982 F.Supp. 120 (D.Conn. 1997) (holding that
attorney’s fees may be awarded upon a finding that a §31-51q action was brought
“without substantial justification”) (citing Conn. Gen. Stat. §31-51q).

D. Promissory Estoppel
Ridgeway’s fourth claim asserts that RBS and its agent, Hewitt, promised
him that he was entitled to take sixteen weeks of medical leave under the FMLA
and CTFMLA and then return to the same or an equivalent position. Ridgeway
contends that it was reasonably foreseeable that he would rely on this promise,
and that he did in fact rely to his detriment, as he scheduled and underwent
surgery and was fired while on medical leave following the surgery.
RBS argues that this claim is virtually identical to his FMLA and CTFMLA
claims, and therefore, where there are statutory remedies available, Ridgeway’s
promissory estoppel claim should be precluded. To support this contention, RBS
relies on Burnham v. Karl and Gelb, P.C., 252 Conn. 153 (2000), for the
proposition that where a statute provides a remedy, the statutory remedy is the
exclusive remedy and precludes any common law actions in either tort or
contract. This proposition, however, is far broader than the actual holding in
Burnham.

32

In Burnham, the Connecticut Supreme Court held that plaintiff’s claim of
wrongful termination for having reported the defendant’s unsafe dental practices
was precluded by the statutory remedy available in Conn. Gen. Stat. §31-51m,
providing both an administrative remedy and a subsequent cause of action to
employees alleging retaliation against the reporting of a suspected violation of
any state or federal law. See Burnham, 252 Conn. 153. Following Burnham, it is
well-established that Conn. Gen. Stat. §31-51m, the Connecticut whistleblower
statute preempts all contract and tort claims for wrongful termination based on
whistleblowing activities. See Naser v. Ravago Shared Services, LLC, No. 3:10CV-573 (WWE), 2010 WL 3829159 (D.Conn. Sept. 20, 2010) (citations omitted); see
also Konspore v. Friends of Animals, Inc., 2010 WL 3023820 (D.Conn. Aug. 2,
2010) (recognizing that Section 31-51m provides the exclusive remedy for
employees who are terminated for whistleblowing); Pickering v. Aspen Dental
Management, Inc., 100 Conn.App. 793, 799 (2007) (holding that plaintiff’s common
law wrongful termination claim was precluded by §31-51m).
However, RBS has presents no authority to substantiate its contention that
this holding provides that where any statutory remedy exist, common law claims
are precluded. Although several Connecticut Superior Court cases have, relying
on Burnham, held that “[a]s a general rule, the existence of a statutory remedy
precludes a plaintiff from bringing a common-law claim,” the Court is unable to
find any such cases precluding a common law claim on the basis of the statutory
remedies codified in CTFMLA, rather such cases appear to preclude only
common law claims of wrongful termination and breach of the implied covenant

33

of good faith and fair dealing. Geysen v. Securitas Sec. Services, U.S.A., Inc., No.
MMXCV095007429S, 2009 WL 4913320 (Conn. Super. Nov. 18, 2009) (holding that
a claim of a breach of the implied covenant of good faith and fair dealing is
precluded by the existence of a statutory remedy); see also, Villa v. MacDermid,
Inc., No. CV065004233S, 2010 WL 1667289 (Conn. Super. Mar. 31, 2010) (holding
that plaintiff’s claim of wrongful termination was precluded by Conn. Gen. Stat.
§31-51m).
Where state law is unclear, federal courts interpreting state law must
predict how the highest court of the State would resolve the question at bar.
Travelers Insurance Co v. 633 Third Associates, 14 F.3d 114, 119 (2d Cir. 1994).
Relying on the Connecticut Supreme Court’s more recent decision regarding the
preemption of common law claims by an express statutory remedy, it appears
that the existence of an exclusivity provision in the statutory provision in
question is relevant to the determination of whether common law claims are
precluded. In DeOliveira v. Liberty Mut. Ins. Co., 273 Conn. 487 (2005), the
Connecticut Supreme Court held that the express statutory remedies provided
under Connecticut’s workers’ compensation law precluded a common law claim
against an insurer for bad faith processing of a workers’ compensation claim, in
part on the basis of an exclusivity provision within the workers’ compensation
statute. The Connecticut Supreme Court recognized that, “the exclusivity
provisions ‘manifests a legislative policy decision that a limitation on remedies
under tort law is an appropriate trade-off for the benefits provided by workers’

34

compensation.’” DeOliveira, 273 Conn. at 496 (quoting Driscoll v. General
Nutrition Corp., 252 Conn. 215, 220-21 (2000).
By contrast, the CTFMLA has a non-exclusivity provision, stating that
“[t]he rights and remedies specified in this subsection are cumulative and
nonexclusive and are in addition to any other rights or remedies afforded by
contract or under other provisions of law.” Conn. Gen. Stat. §31-51pp(3). Whether
or not the phrase “provisions of law” was intended to refer to other statutory
schemes or common law, this provision as a whole indicates that the CTFMLA is
not intended to function as an exclusive remedy to aggrieved employees.
Therefore, where RBS has failed to present any authority indicating that the
provisions of the CTFMLA preclude common law claims of promissory estoppel
and given the CTFMLA’s non-exclusivity provision, the Court will not preclude
Ridgeway from raising a claim of promissory estoppel in conjunction with his
CTFMLA claim.
The Court is similarly unable to hold that Ridgeway’s Connecticut common
law claim of promissory estoppel is precluded by the FMLA, given the express
language of Section 2651(b) of the FMLA, stating that “[n]othing in this Act or any
amendment made by this Act shall be construed to supersede any provision of
any State or local law that provides greater family or medical leave rights than the
rights established under this Act or any amendment made by this Act.” 29 U.S.C.
§2651(b). Section 2651(b) of the FMLA “makes clear that the Act will not curtail
rights established by any state or local law” which is “proof that Congress did
not wish for federal law—and therefore federal courts—to control the field in this

35

area of litigation. Rather, Congress intended that the FMLA serve as a
complement to state law.” Bellido-Sullivan v. American Intern. Group, Inc., 123
F.Supp.2d 161 (S.D.N.Y. 2000). Although courts have held that where a plaintiff
has filed a claim under the FMLA, such claim precludes a state common law claim
of wrongful discharge, the Court finds no precedent to suggest that an FMLA
claim precludes all related state common law claims, such as promissory
estoppel. See, e.g., Nanos v. City of Stamford, 609 F.Supp.2d 260 (D.Conn. 2009)
(holding that plaintiff’s claim of wrongful discharge was precluded by the
existence of statutory remedies under the FMLA and the ADA). Rather, as this
Court has recognized in the past, a plaintiff may pursue simultaneously a claim
under the FMLA and a Connecticut common law claim of promissory estoppel.
Gauthier v. Yardney Technical Products, Inc., No. 3:05-cv-1362(VLB), 2007 WL
2688854 (D.Conn. Sept. 13, 2007) (denying defendant’s motion for summary
judgment as to plaintiff’s promissory estoppel claim premised upon promises
relating to plaintiff’s employment status which were similar to the factual
predicate for plaintiff’s claim under the FMLA).
To establish a prima facie case of promissory estoppel a plaintiff must
establish the following elements: “(1) a promise (2) which the promisor should
reasonably expect to induce action or forbearance (3) on the part of the promisee
or a third person and (4) which does induce such action or forbearance is binding
if injustice can be avoided only by enforcement of the promise.” Ferrucci v. Town
of Middlebury, 131 Conn. App. 289, 305 (2011) (citing RESTATEMENT (SECOND) OF
CONTRACTS § 90 (1) (1981)).

36

To establish such a claim, Ridgeway alleges that RBS promised “that he
was entitled to take sixteen weeks of medical leave under the FMLA and CTFLA
and then return to his position or to an equivalent position with RBS once he was
medically cleared to return to work.” [Dkt. #1, Compl., ¶ 77]. RBS does not
dispute that this language is sufficiently “clear and definite” so as to constitute a
clear promise. See Stewart v. Cendant Mobility Services, Corp., 267 Conn. 96, 105
(2003) (citation omitted). Further, the promise, as alleged, reflects “a present
intent to commit,” rather than a “mere statement of intent to contract in the
future,” as the language of the promise was clear and definite, absent any
references to hope desire or opinion. See id. at 105.
Ridgeway’s allegations satisfy the second and third elements as well,
demonstrating from the context of the promise that RBS and its agent, Hewitt,
should have reasonably expected Ridgway to rely on the promise. Ridgway
alleges that the promise was made following Ridgeway’s request to take leave in
order to undergo surgery, conveying to both RBS and its agent, Hewitt, that
Ridgeway would rely on the promise of the protected medical leave by
undergoing the surgery, necessitating his absence from work.
Lastly, it is exceedingly apparent from Ridgeway’s allegations that he did in
fact rely on the promise conveyed, by undergoing surgery and taking the medical
leave to which he was promised to be entitled.
Accordingly, RBS’s motion to dismiss Ridgeway’s claim of promissory
estoppel is DENIED.

E. Negligent Misrepresentation
37

Ridgeway’s fifth and final cause of action asserts that RBS made false
representations which they knew or should have known were incorrect regarding
his entitlement to protected medical leave under the FMLA and CTFMLA.
Ridgeway further contends that he reasonably relied on these representations to
his detriment, suffering lost compensation, seniority, benefits, and other rights,
privileges and conditions of employment.
Defendants argue that this claim should be dismissed because under
Connecticut law claims by employees against their employers for negligence
during an ongoing employment relationship are not cognizable, and because this
common law claim is precluded by the statutory remedies provided by the
CTFMLA and FMLA.
Ridgeway’s claim of negligent misrepresentation is not barred as a matter
of law. RBS’s reliance on Perodeau v. City of Hartford, 259 Conn. 729, 758-63
(2002) is misplaced. [Dkt. #18, Def.’s Mem., p. 25]. In Perodeau, the Connecticut
Supreme Court held that negligence claims for emotional distress, arising during
the course of employment, are not actionable. Perodeau, 259 Conn. at 758.
However, a careful reading of the decision reveals that this holding is only
applicable to emotional distress claims. The court opines before its holding that
“it is clear that individuals in the workplace reasonably should expect to
experience some level of emotional distress, even significant emotional distress,
as a result of conduct in the workplace,” which is indicative of the scope of the
court’s holding. Id. at 757. Further, the court’s reasoning further evinces that the
scope of the holding is limited to claims of negligent infliction of emotional
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distress. First, the court reasoned that threat of litigation during continuing
employment would cause a “pervasive chilling effect [that] outweighs the safety
interest of employees in being protected from negligent infliction of emotional
distress.” Id. at 758 (emphasis added). Second, the court noted that the
“inherently competitive and stressful nature of the workplace and the difficulties
surrounding proof of emotional distress, extending the tort of negligent infliction
of emotional distress to ongoing employment relationships would open the door
to spurious claims.” Id. (emphasis added). Thus, the court held that “an
individual municipal employee may not be found liable for negligent infliction of
emotional distress arising out of conduct occurring within the employment
context.” Id. at 762 (emphasis added). The Perodeau holding is riddled with
constant references to the emotional nature of the claims in the case and the
public policy concerns pertaining specifically to emotional distress.
Grunberg v. Quest Diagnostics, Inc., 2008 WL 323940 at *9 (D. Conn. Feb. 5,
2008), upon which RBS also relies, is similarly distinguishable because the
plaintiff alleged negligent misrepresentation arising out of the same locus of
operative facts as her other claims. These operative facts emphasized the
infliction of emotional distress upon the plaintiff. [See generally, 3:05CV1201 Dkt.
#1, Complaint, ¶¶ 1 – 20, 87 – 94]. Unlike Grunberg, Ridgeway’s negligent
misrepresentation claim does not focus on negligent infliction of emotional
distress and does not violate the public policies listed in Perodeau. At most,
Ridgeway asserts a cursory request for emotional distress damages. [See Dkt.
#1, Complaint, ¶ 87]. Where the claim asserted is not for negligent infliction of

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emotional distress, but rather negligent misrepresentation, the claim of negligent
misrepresentation is not barred as a matter of law. See Kanios, 2005 WL 3579161
at *11 (denying summary judgment on a claim for negligent misrepresentation of
an FMLA leave by the plaintiff).

A claim of negligent misrepresentation is established when (1) the
defendant made a misrepresentation, (2) the defendant knew or should have
known that the representation was false at the time, and (3) the plaintiff
reasonably relied upon the representation to the plaintiff’s detriment. Kanios v.
UST, Inc., 2005 WL 3579161 at *11 (D. Conn. Dec. 30, 2005).
Ridgeway’s allegations sufficiently assert that RBS and its agent Hewitt
misrepresented his entitlement to FMLA and CTFMLA leave between January 1,
2010 and April 22, 2010. Further, the allegations assert that RBS/Hewitt knew or
should have known that his entitlement to protected medical leave was
misrepresented. Although Hewitt informed Ridgway in December 2009 that he
was entitled to such leave, Ridgeway alleges that on January 25, 2005, RBS
informed him that his leave entitlement to FMLA leave had in fact been exhausted
as of January 1, 2010. After a period of conflicting exchanges between Ridgeway
and RBS/Hewitt, Ridgeway was ultimately informed on April 16, 2010 that there
was an outstanding question as to whether or not his leave should have been
approved. As Ridgeway has alleged, RBS changed its method for calculating
FMLA and CTFMLA leave from the calendar year method, to a twelve month
rolling backward approach. Although Ridgeway did not allege the exact date

40

upon which RBS adopted this new approach, he has plausibly alleged that RBS
knew or should have known, at the time that his leave was approved in December
2009, that he was not in fact entitled to such leave, given the new calculation
method. In changing their policies for calculating leave, the RBS is obligated to
ensure that its employees are provided with accurate assessments of their
entitlement to protected medical leave. With the benefit of discovery, the parties
can further explore the timing of this change in the calculation method. If in fact,
RBS had not yet adopted the 12 month rolling backward approach in December of
2009, such that Ridgeway’s approval was not a misrepresentation of his
entitlement to leave, RBS is entitled to assert such evidence in the form of a
motion for summary judgment to renew its challenge to Ridgeway’s claim of
negligent misrepresentation.
Lastly, as discussed in the context of Ridgeway’s claim of promissory
estoppel, he has clearly alleged that he relied on RBS/Hewitt’s representation that
he was entitled to sixteen weeks of protected medical leave. On the basis of
Hewitt’s confirmation of his entitlement to FMLA and CTFMLA leave between
January 1, 2010 and April 22, 2010, Ridgeway scheduled and underwent surgery
and took leave from his employment with RBS to recover, ultimately suffering a
termination of his employment on April 22, 2010. Further, Ridgeway alleges that
as a result of his reliance on RBS’s misrepresentation, he has suffered lost
compensation, seniority, benefits and other rights, privileges, and conditions of
employment.

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Accordingly, Ridgeway has plausibly alleged a claim of negligent
misrepresentation. RBS’s motion to dismiss Ridgeway’s claim of negligent
misrepresentation is DENIED.
IV.

Conclusion
Based upon the above reasoning, RBS’s motion to dismiss is GRANTED in

part and DENIED in part. The motion to dismiss is granted as to claim two,
alleging wrongful termination, and claim three, alleging a violation of Conn. Gen.
Stat. §31-51q. The motion to dismiss is denied as to claim one, asserting both
interference and retaliation in violation of the FMLA, claim four for promissory
estoppel, and claim five for negligent misrepresentation.

IT IS SO ORDERED.
_______/s/____________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: March 26, 2012

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